Court File and Parties

COURT FILE NO.: CV-05-CV301237 MOTION HEARD: 20180618 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jerry Palkowski and Jane Palkowski, Plaintiffs AND: Stipan Ivancic, also known as Steve Ivancic, Defendant

BEFORE: Master B. McAfee

COUNSEL: D. Rosenbluth, Counsel for the Moving Party, Paliare Roland Rosenberg Rothstein LLP R. Chapman, Counsel for the Responding Party, the Defendant, Stipan Ivancic, also known as Steve Ivancic J. Wilkes, Counsel for the Defendant to the Counterclaim Paliare Roland Rosenberg Rothstein LLP in action no. CV-16-566030 (in attendance for part of the motion only)

HEARD: June 18, 2018

Reasons for Decision

[1] This is a motion brought by Paliare Roland Rosenberg Rothstein LLP (the law firm) for an order granting leave to the law firm to release the sum of $77,228.85 held in its trust account to its general account.

[2] The monies at issue represent the amount of outstanding fees that the law firm alleges are owing to them by their former client Stipan Ivancic, also known as Steve Ivancic (Ivancic). The monies are in the law firm’s trust account pursuant to a consent order granted in the within action on July 4, 2017.

[3] Ivancic opposes the motion.

[4] Counsel for the law firm in a separate action (action no. CV-16-566030), more of which is said below, attended at the outset of the motion. Counsel for the law firm in the separate action sought confirmation from the court that no factual findings would be made on the within motion to prejudice the defence of the law firm in the separate action. As agreed by all parties, the confirmation requested was provided and counsel for the law firm in the separate action was excused.

[5] On or about January 13, 2015, the law firm was retained to act for Ivancic in the within action and a related action regarding title to a property occupied by the plaintiffs and owned by Ivancic. The law firm was retained to act on Ivancic’s behalf at trial. Following a three day trial, the trial Judge ordered Ivancic to transfer the property to the plaintiffs.

[6] The law firm was instructed to appeal the trial judgment. The law firm perfected the appeal. Before the appeal was argued, Ivancic retained new counsel, Mr. Chapman, who remains Ivancic’s current counsel. The appeal to the Court of Appeal was dismissed. Leave to appeal to the Supreme Court of Canada was dismissed.

[7] In December 2016, before the transfer of the property occurred, the law firm commenced a separate action against Ivancic (action no. CV-16-566030) for non-payment of fees. Ivancic has counterclaimed alleging solicitor’s negligence in the separate action.

[8] The law firm and Ivancic then agreed to an order concerning the proceeds of the sale of the property in the within action. The order dated July 4, 2017, declares a solicitor’s lien and charging order in favour of the law firm in the amount of $77,228.85 and orders that amount to be paid into the law firm’s trust account. The monies are to be held in trust pending the agreement of Ivancic and the law firm or a further order of the court. As there has been no agreement of Ivancic and the law firm, the law firm seeks an order of the court at this time that the monies be transferred to the law firm’s general account.

[9] The issue of the law firm’s fees and alleged solicitor’s negligence are the subject matter of the separate action (action no. CV-16-566030). That action has not yet been determined. Although Ivancic has not requested a formal assessment of the accounts, negligence is a defence to an action for fees (see Orkin, The Law of Costs, (2nd ed. – loose leaf) ss. 310.2). In my view this motion is premature in these circumstances.

[10] The motion is accordingly dismissed. The relief sought may be requested at the same time as the determination of the issues in the separate action (action no. CV-16-566030), subject to the discretion of the presiding Judge.

[11] The parties agree that the successful party is entitled to costs in the amount of $6,500.00 payable within 30 days. The relief sought by the law firm was not granted. Costs are accordingly fixed in the amount of $6,500.00 payable by the law firm to Ivancic within 30 days.

Master B. McAfee Date: June 25, 2018